REGULAR REGISTERED NURSE (RN) POSITIONS ARE NOT ELIGIBLE FOR H-1B VISAS

Compiled by Lal Varghese, Attorney at Law, Dallas

A recent memorandum by the Executive Associate Commissioner for USCIS giving some guidance on adjudication of H-1b petitions on behalf of Nurses has been misinterpreted and has given wide publicity in Asian community news media. The purpose of the memorandum was to provide the USCIS field offices, which adjudicate H-1b petitions when the beneficiary is a Registered Nurse (RN). The memorandum only clarifies a more than ten-year old law that allows non-immigrant visas under the category H-1b. The memorandum never gives any additional authority for the USCIS offices to adjudicate H-1b petitions when the beneficiary is a Registered Nurse (RN). The memorandum in its first paragraph clearly says that while typical RNs generally do not meet the requirements for H-1b classification, RNs in certain specialized nurse occupations are more likely than typical RNs to be eligible for H-1b status.

USCIS will approve an H-1b nonimmigrant worker petition filed on behalf of a foreign nurse if the statutory and regulatory requirements for H-1b classification are met. An individual is eligible for H-1b nonimmigrant classification if the alien is to be employed in a Specialty Occupation. The Immigration and Nationality Act (INA) defines Specialty Occupation as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Regular or entry level RN position does not require the theoretical and practical application of a body of highly specialized knowledge and a US bachelor degree or its foreign equivalent degree as a minimum qualification, hence it is not a Specialty Occupation, and hence RNs are not eligible for H-1b nonimmigrant visas. Again under the INA the Specialty Occupation is requirement is met by “(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (B) completion of the degree described in above for the occupation, or (C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.”

In order to be licensed as an RN, an individual must possess diploma in nursing from an approved nursing institute and pass the National Council Licensure Examination for Registered Nurses (NCLEX-RN) examination. Since the minimum requirement for entry in to the field of nursing as a registered nurse is a two-year associate degree in nursing (A. D. N) from any U. S institutions or foreign diploma in nursing from approved institutions outside U. S., and the license from the states where the alien is working as a nurse. Thus it is clear that a typical RN position is not likely being eligible for H-1b classification. Accordingly, the memorandum clearly says an RN positions do not generally require a bachelor’s degree or higher degree for entry level position.

In order to qualify an RN position as H-1b Specialty Occupation, the employer must meet the existing regulatory requirements by showing that: (1) a bachelor’s or higher degree (or its equivalent) is normally the minimum requirement for entry level into the position; (2) the degree requirement is common to the industry for parallel nursing positions (i.e., employers in the same industry require their employees to hold the degree when they are employed in the same or a similar position); (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree (or its equivalent). In determining degree equivalencies, the USCIS uses a formula that requires the beneficiary to have three years of specialized training and/or work experience for each year of college level education that the beneficiary is lacking. Accordingly, an RN will be eligible for H-1b classification only if the employer can demonstrate that the RN position and the alien meet the regulatory requirements for establishing that the position is H-1b as mentioned above.

But, the memorandum says, in contrast to most RN positions, certain specialized nursing occupations like Advanced Practice Registered Nurses (APRN) are likely to require a bachelor’s degree or higher degree, and accordingly, be qualified as H-1b Specialty Occupation. If the RN position requires that the employees should have advanced practice certification in any of the following areas namely: Clinical Nurse Specialist (CNS), Certified Registered Nurse Anesthetist (CRNA), Nurse Practitioner (NP), Certified Nurse Midwife (CNM), or Certified Nurse Practitioner (APRN), and if the APRN position also requires that the employee be certified in that practice, then the nurse will be required to possess an RN license, at least a bachelor degree in nursing (BSN or its equivalent like B. Sc in nursing), and some additional graduate level education, such positions are qualified as Specialty Occupation and hence eligible for H-1 classification.

Nurses in administrative positions, such as upper level “Nurse Manager”, or nurses in educational positions such as Nurse Educator may qualify as Specialty Occupation, since the minimum entry level qualification to such positions are U. S bachelor degree or its equivalent. The memo clearly says, a general RN position does not qualify as a Specialty Occupation, and hence not for H-1b classification. According to the National Council on State Boards of Nurses (NCSBN) has confirmed that the state of North Dakota is the only state in U. S that requires that an individual possess a bachelor degree in nursing (BSN) in order to be licensed as an RN in that state. Thus a position as an RN in the state of North Dakota will generally qualify as a Specialty Occupation and hence for H-1b qualification, according to the memorandum. The memorandum says, each petition must be adjudicated on a case by case basis and a decision to approve or deny the petition must take into account the totality of the requirements for the position, namely educational requirements, additional training in the specialty, and the experience, and the individual’s qualifications for the position. To sum up, an RN position does not meet the requirements of Specialty Occupation in order to classify as an H-1b occupation. But there are certain advanced RN positions in specialty areas that require additional certifications, and minimum bachelor’s degree or its equivalent as minimum qualification, which may qualify as Specialty Occupation, and thereby for H-1b qualification. In North Dakota state only, an RN position qualify as a Specialty Occupation, and hence for H-1b classification.